48. Delays. It is not unusual for the contractor who has agreed to have the work completed by a certain date, to be delayed, and thus prevented from complying with the contract, through the fault of other contractors or of the owner. Where the delay has been caused by the default of other contractors, it seems to be held as a rule, that the contract is subjected to implied modifications in regard to the time limit; an extension of the time being allowed to the principal contractor, equal to the delay caused by the other's, fault. This is substantially the same as was held in Illinois when the court stated: "Where one contracts to do certain work in such a way as not to delay other contractors, and to have it done on a certain day, and, by delays of other contractors, is unable to commence it until near the time of completion, he is still held to the contract, except as to time of completion, and for unnecessary delay on his part will be liable to his employers for damages.'

Should the delay be caused through the fault of the owner, the contractor will not only be entitled to an extension of the time limit, but should he on the same account be put to additional expense, he will be able to hold the owner for such; unless it is provided in the contract that the owner shall have the power to postpone or delay the work as he may see fit. When, however, the contractor finds that the owner or the other contractors are causing him delay and additional expense, he should notify the owner to that effect immediately, so that the owner can take steps to prevent the delay, or so enjoin the other contractors that they will remove the cause of the complaint, and hence the additional expense to the complainant.

49.

Non-Fulfilment of Contract.-The owner, upon finding that the work is not progressing rapidly enough, due to neglect or inability on the part of the contractor, may, upon giving due and proper notice to that effect, employ other parties to finish the contract, and in due justice to himself may, in order that he will not lose the advantage of the contract, pay these parties out of the contract

It is

price, or charge the cost to the original contractor. usual, in carefully written contracts, to provide in some manner for this contingency, and to make special provision in regard to the terms and circumstances which will authorize the owner in taking such a step. The rights of the contracting parties in regard to this are clearly expressed in the following decision of the Supreme Court of Illinois: "If one party induces the other to believe that he has withdrawn from the contract, the other need not wait for the day of performance before making new arrangements, nor does he lose his remedy against the delinquent party by providing at once against losses likely to arise against such delinquencies."

The owner, in taking the work out of the delinquent contractor's hands and completing it himself, or through another contractor, must see that it is done within a reasonable expense. In fact, since the original contractor has to pay for the subsequent work, it is really his money that is being used, and the owner should guard it as he would his own, avoiding extravagant or wasteful expenditures; for, should it be proven that he was careless in this respect, and attempted to charge an unreasonable sum against the original contractor, the courts will not uphold him. The owner may, if he deems it advisable, complete the building by day work, or he may make arrangements with another contractor to do so at a reasonable price; but he must keep careful account of the actual expenditures, and charge nothing else against the original contractor.

Should the owner, after rescinding the contract according to the provisions in it, or upon good and sufficient reasons, find that some of the original contractor's work is defective, he may make good such work, and charge it to the cost of completing the building. If there are materials upon the site of the new building furnished by the original contractor, and these materials are good in every respect and substantially as specified or contracted for, the owner is bound to use them in completing the work, and thus avoid charging the original contractor the cost of such materials, that may be of less or no value on other work.

In well drawn contracts, however, provision is generally made that where the contract is forfeited, and materials are left on the ground by the original contractor, they shall be used at the discretion of the owner or architect.

Even where the contract has granted them the authority, the owner, and the architect as well, should carefully consider the circumstances, and all of the stipulations relating thereto, before taking so serious a step as the forfeiture of a contract. Where no provision has been made in a contract with regard to the contingency of its forfeiture, the owner or architect, as the case may be, should, when he has good reason to do so, notify the contractor that he has forfeited his right to complete the contract. He should also endeavor to show an intention of finishing the work, according to the terms of the contract, at a minimum cost to the original contractor, and protect his interest in every possible way.

50. Terminating a Contract.—An architect was once authorized in a contract to terminate it if he should see fit; the contractor applied to court for a decision as to whether the architect had a right, under the circumstances, to forfeit the contract. The architect held that he had the right to declare the contract forfeited, under the terms of the agreement; but the court decided that the contractor had the privilege to apply to the court for their decision as to whether the architect was justified in terminating the contract.

The termination of the contract, and the completion of the work by the owner or his representative, somewhat changes the position of the architect. A New York court held, in a case where a subcontractor had entered suit and the work was being finished by other parties designated by the owner, who had rescinded the original contract, that the certificate of the architect, which was required under the original contract before payment would be made, was not required as the owner was now his own contractor.

51. Premiums.-Premiums are sometimes offered where the work is of special importance, and are stipulated in the contract as being payable to the contractor at so much

a day for each and every day that he shall have the work finished before the stipulated time. Where such premiums are stipulated in the contract and the owner in some way unreasonably delays the work, thus preventing the contractor from completing it before the stipulated time, and depriving him of the premium, it has been held that he can recover, provided it can be proved that he would have finished before the time specified, if the owner had not interfered.

The difficulty, however, in such cases is in determining just how long before the stipulated time the contractor would have finished, provided the owner had not interfered. This at best is mere guesswork, and depends upon the circumstances surrounding the case. Where the stipulated premium amounts to a considerable sum of money for each day gained, it can readily be seen how important it is to determine correctly the exact number of days. For instance, in one case the stipulated premium was $500 a day for each and every day the contractor should have the work completed before the specified time; the owner interfered, and the contractor entered suit, claiming that without such interference he would have gained considerable premium; the court decided that he could have finished 30 days before the stipulated time, and awarded him the $15,000 due him.

EXTRA WORK.

52. Extra Work : Verbal Understanding.—In a case brought before the Superior Court of Massachusetts, where the written contract stipulated that no extra work would be paid for unless ordered in writing, and where the contractor had done extra work on verbal orders and been refused payment, the court held that "attempts of parties to tie up by contract their freedom of dealing with each other are futile. The contract is a fact to be taken into account in interpreting the subsequent conduct of the plaintiff and defendant, no doubt, but it cannot be assumed, as a matter of law, that the contract governed all that was done until it was renounced

in so many words, because the parties had a right to renounce it in any way, and by any modes of expression they saw fit." In expressing the above decision the court was undoubtedly governed by the facts of the case, which were that most of the work was done after the original contract was practically completed, and the extra work, which was done during the completion of the original contract, had been verbally agreed to, and payment promised for the same. Hence it seems that the point to decide was not so much the setting aside of the stipulations requiring all extra work to be ordered in writing, as it was whether the stipulations in the original agreement applied to subsequent and apparently independent. work.

A similar case came before the Federal Court, where suit was entered by a contractor to recover payment for extra work, which the government had refused because it was stipulated in the contract that no extra work should be paid for unless agreed upon in writing. The court held that such a clause was inserted by the government in order to limit the powers of the architect and superintendent, and did not bind the parties in such a manner as to avoid a verbal or implied agreement for extra work. The judge further stated: "Courts cannot transmute a contract into a statute of frauds, nor attach to the agreement of the parties the irrevocable mandatory attributes of a statutory provision. A provision in a written contract declaring that no claim for extra work shall be made unless it was required and agreed upon in writing, is merely a condition, which may be waived by a subsequent oral agreement." Also, "Where a public agent requests a departure from an express contract, and the change ordered is of such a nature that he may reasonably suppose that no additional expense will be caused thereby, the contractor is bound to speak, or he will be deemed to have consented to make the substitution at the contract rate. But where the change is of such a nature that it must necessarily involve additional cost, no such notification is necessary, and the contractor will recover reasonable compensation."